Can an act of consensual sex constitute a felony under Florida law? That is the question that the Florida Supreme Court considered recently in a case involving two men who engaged in sex, one of whom was HIV-positive and failed to warn his partner in advance of his condition.
Sexual intercourse can be a felony if it is non-consensual, such as rape or sex with an individual who has not reached the legal age of adulthood. Florida law also makes sexual intercourse a felony if a person who has been diagnosed with HIV engages in sex without informing his or her partner beforehand.
But in a twist that has thrown the state’s appeals courts into confusion, decisions about whether the failure-to-warn law applies to anything other than heterosexual sex has forced the supreme court to consider the issue.
Florida law defines sexual intercourse as when male and female sex organs come into contact. Based on that definition, the attorney representing the man who was accused of violating the failure-to-warn law about HIV is arguing that sex between two people of the same sex is not, under the literal reading of the law, “sexual intercourse.” Florida law used to ban sex between same sex partners altogether, but the U.S. Supreme Court ruled that restriction unconstitutional.
The state’s Second District Court of Appeal has already held that the answer to that question is “No” when two women are involved. But the Third District Court of Appeal has held the opposite in a case involving two men, interpreting “sexual intercourse” more broadly to include sex between same sex partners. The supreme court has become involved in order to resolve the matter.
Florida criminal defense firms will be interested in the outcome of the matter, for the court’s decision can have significant implications for individuals who run afoul of the criminal law requiring that an HIV-positive person to warn his or her partner in advance, implications which can affect not only their sexual choices and freedoms but their personal freedom as well.
Source: The Florida Times Union, “Florida Supreme Court to decide whether legal definition of sex applies to gays,” Andrew Pantazi, Feb. 4, 2015